CLA-2 CO:R:C:T 087940 CRS
Ronald W. Gerdes, Esq.
Sandler, Travis & Rosenberg, P.A.
1120 19th Street, N.W.
Washington, D.C. 20036-3605
RE: Boxer shorts with unisex styling or non-underwear features
not classifiable as men's underwear. Note 8, Chapter 62.
Dear Mr. Gerdes:
This is in reply to your letter dated March 6, 1991, in
support of a ruling request dated August 29, 1990, from Mr. Kit
Craig Crider of the Banana Republic, your client, concerning the
classification of boxer shorts under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). Numerous
samples of Banana Republic boxer shorts were submitted with the
original request of 29 August; however, this ruling addresses
only the style described below. In addition, you have provided
numerous samples of similar merchandise. These additional
samples were provided in support of your client's position and
are not the subject of this ruling request.
FACTS:
The merchandise in question consists of a pair of woven, 100
percent cotton boxer shorts, style 31252, size adult medium. You
have submitted size specifications for the shorts at issue.
Those measurements which are relevant are excerpted below. All
measurements are in inches.
XS S M L XL
Waist relaxed 21 23 25 28 31
Waist extended 42 44 46 49 52
Bottom 26 27 28 29 31
The garment has a fly front with snap closure, and is
printed in a color described as an "Solid Chambray." The shorts
are marked "Made in Hong Kong." The above specifications were
not attached specifically to style 31252 but were submitted with
your letter of March 6th, together with an additional sample of
your client's merchandise, a "stamp" print boxer, style 12411, as
an example of the type of garment imported by the Banana
Republic. In this regard you state that:
[The stamp print boxer] is representative of the style
sold in Banana Republic stores. While the print of the
fabric will vary (approximately 8-10 different prints
are offered each season) the basic construction of the
garment, i.e., length of fly, length of inseam, width
of leg, unitary elastic waistband, the snap on the fly,
etc., remains the same.
We have also obtained specification measurements for style
12436A, which are identical to those for style 12411.
In addition to your client's specifications for boxer
shorts, this office has obtained size specifications from three
domestic underwear producers on a range of boxer short styles.
Size specifications typical of the measurements of men's boxer
short underwear are set forth below. Only the measurements that
are directly comparable to the measurements of the merchandise in
question are shown. All measurements are in inches.
S M L XL
Waist relaxed 25 29 32 36
Waist extended 36 40 44 48
Seat width (Bottom) 22 24 26 29
You contend that the instant boxer shorts are classifiable
as men's underwear. In support of this you state that Customs
has uniformly classified garments with the design features of the
merchandise in question as men's underwear. In particular, you
note that New York Ruling Letters (NYRL) 850329 and 850330 dated
March 19, 1990, NYRL 851059 dated April 20, 1990, and NYRL 842587
dated July 6, 1989, issued to your client, classified various
styles of boxer shorts as men's underwear of heading 6207. In
Headquarters Ruling Letter (HRL) 087939 dated November 28, 1990,
however, similar merchandise was classified as women's shorts of
heading 6204, HTSUSA.
ISSUE:
Whether the style 31252 boxer shorts are classifiable as
underpants or as shorts.
LAW AND ANALYSIS:
Attached to your submission of March 6, 1991, were numerous
examples of boxer shorts, labeled Exhibits A - LL, purchased at
different locations around the country. In addition, numerous
catalogues and advertisements were provided in which various
types of boxer shorts were illustrated. You maintain that these
materials support the conclusion that boxer shorts constitute a
class or kind of merchandise principally used, made, marketed and
sold as men's underwear.
Specifically, you argue that the Banana Republic boxers, and
thus style 31252, are classifiable as men's underpants pursuant
to the terms of heading 6207. General Rule of Interpretation
(GRI) 1. Although you maintain that the Banana Republic boxer
shorts should be classified pursuant to GRI 1, you also contend
that their principle use is as underwear and that consequently,
they warrant classification in heading 6207 under Additional U.S.
Rule of Interpretation 1(a).
In support of your client's position, you cite nine rulings
issued by Customs from September 1986 through October 1990, in
which boxer shorts were classified as underwear. On this basis
you maintain that there appears to be a uniform and established
practice to classify the type of garment at issue as men's
underwear. However, for reasons which are set forth below we
consider the instant merchandise to be distinguishable from
boxer short underwear. Furthermore, Customs Headquarters has not
published any rulings on boxer short underwear under the HTSUSA
that would establish a uniform practice (19 CFR 177.10(b)).
Indeed, we note that the rulings issued by this Office under the
HTSUSA concerning boxer shorts have resulted in these articles
being classified as men's shorts as well as men's and women's
sleepwear. HRL 087436 dated September 25, 1990; HRL 088489 dated
April 18, 1991; and HRL 088192 dated February 20, 1991.
Consequently, Customs does not recognize the existence of a
uniform and established practice with respect to the garments in
question.
In the event that Customs were to decide that there had been
no uniform practice with regard to the instant merchandise, you
have requested that public comment be sought prior to any
decision on your client's merchandise. We do not consider this
to be warranted since it is likely that a majority of the type of
boxer shorts attached to your March 6th submission would, if
imported, continue to be classified as underwear. Thus we do not
anticipate any dislocation in the underwear trade as a result of
this ruling. We have consulted the major domestic men's
underwear manufacturers through our National Import Specialists
and through the Committee for the Implementation of Textile
Agreements and are satisfied that the criteria set forth in this
ruling represent commercially realistic distinctions between
underwear and outerwear.
In NYRL 850329, NYRL 850330 and NYRL 851059, nine styles of
the Banana Republic's boxer shorts were classified under the
provision for men's underwear of heading 6207. In HRL 087939, a
tenth and separate style of your client's merchandise, style
12437, was held to be classifiable as women's shorts of heading
6204. In so holding we distinguished the Banana Republic shorts
from men's underwear on the basis of their styling features and
cut. In particular, we noted the presence of a snap closure on
the fly, the smaller than normal cut of the waist and the wider
than normal cut of the seat. On the basis of what we deemed to
be their unisex styling, the style 12437 shorts were classified
as women's shorts of heading 6204. We also observed the
influence of changing fashions and the fact that it was
increasingly popular to wear boxer shorts as a form of outerwear
rather than solely as underwear. You argue, however, that HRL
087939 is not supported by the evidence and that the Banana
Republic boxer shorts are properly classifiable as underwear.
Four headings are potentially applicable to the garments at
issue: heading 6207, HTSUSA, which provides for, inter alia,
men's or boys' underpants, briefs and similar articles; heading
6208, HTSUSA, which provides for, inter alia, women's or girls'
briefs, panties and similar articles; heading 6203, HTSUSA, which
provides for, inter alia, men's or boys' shorts; and heading
6204, HTSUSA, which provides for, inter alia, women's and girls'
shorts.
Note 8, Chapter 62, HTSUSA, provides that woven apparel that
cannot be identified as either men's or boys' garments or as
women's or girls' garments are to be classified in the headings
covering women's or girls' garments.
Contrasting the measurements for style 31252, size medium,
with measurements for size medium supplied by the three largest
domestic manufacturers of men's underwear, a number of
significant differences can be observed. First, the relaxed
waist of style 31252 is narrower for all size ranges than is the
relaxed waist typical of men's underwear. For example, the
relaxed waist of the style 31252 medium is 25 inches whereas the
typical relaxed waist for men's underwear is 29 inches. When
stretched, however, style 31252's waist is larger than the
extended waist of men's underwear, e.g., 46 inches as compared to
40 inches for size medium.
Second, style 31252's leg opening measures 28 inches; a
typical men's medium underwear boxer leg opening measures
approximately 25 inches. Comparing these measurements with the
relaxed waist measurements above, it can be seen that the leg
opening of style 31252 exceeds the width of its relaxed waist.
Correspondingly, the leg opening of a typical garment
manufactured and sold by domestic producers of men's underwear is
narrower than the width of its relaxed waist.
Third, style 31252's seat measures 29 inches; as far as we
can ascertain from the specifications provided by the major U.S.
producers of men's underwear, men's medium boxer short underwear
typically measure 24 inches in the seat.
Customs considers these measurements an indication that the
garment at issue is not constructed solely for men but rather is
designed as a unisex garment to fit men and women. Thus, for
example, the cut of the waist. In its relaxed state (25 inches)
the waist of a size medium is small enough so that the garment
can be worn by those with smaller waists (generally women); but
the waist expands to 46 inches when stretched so that the garment
can also be worn by those with larger waists (generally men).
The specifications obtained from men's underwear manufacturers
indicate that men's underwear boxers are not designed in this
manner, that is, to fit both smaller and larger waist sizes. In
addition, whereas style 31252 and all Banana Republic boxers are
produced in sizes extra small to extra large, men's underwear
typically range in size from small to extra large. Furthermore,
within these size ranges, we are advised by the National Import
Specialists that a production run of men's boxers is comprised of
18 percent small, 33 percent medium, 33 percent large and 18
percent extra large garments. In contrast, we are advised that a
production run of Banana Republic garments consists of 10 percent
extra small, 20 percent small, 40 percent medium, 20 percent
large and 10 percent extra large. Comparing the production runs
it can be seen that while 50 percent of typical men's underwear
consists of large and extra large garments, only 30 percent of
the Banana Republic boxers are in this range, suggesting once
again, therefore, that these articles are designed for the unisex
market rather than for men.
You state that the specifications upon which we have based
our analysis constitute an insufficiently broad sample size from
which to draw conclusions. However, since the date of your
Freedom of Information Act request we have obtained additional
size specifications on a variety of styles. Moreover, this
Office and the National Import Specialist have discussed the size
specifications with representatives of the companies concerned
and are confident that they accurately reflect the typical cut
and design of men's underwear.
You also contend that in comparing the Banana Republic size
medium to a domestic manufacturer's size medium that Customs is
comparing apples and oranges rather than like with like. Instead
you assert that the Banana Republic large (34-36 waist) should be
compared with a standard men's underwear medium (34-36 waist).
While we agree that in contrasting the Banana Republic medium
with a standard men's underwear medium that different articles
are being compared, we do not agree that this invalidates the
analysis. On the contrary, we believe this supports our position
that the Banana Republic garments are unisex in design.
The fact that boxer shorts similar to the merchandise in
question are indeed worn by women finds support in numerous
articles and advertisements. For example, the J.Crew
Spring/Summer 1991 catalogue, at 50, prefaces its advertisement
for boxer shorts as follows:
Men's(?)
boxer underwear
No question: this is a classic cut of men's underwear.
So why have we been seeing them worn by women...in
public...from Key West to Kaui? Color, pattern, and
comfort have a great deal to do with it. All cotton.
Cut generously with fly front, 4 inseams. Deep (1)
fabric-encased elastic waistband...Even waist sizes 26-
40.
The boxers advertised include solids, stripes, floral, daisy and
other multicolored prints. One photograph shows a woman standing
at water's edge wearing a style of the boxer shorts, apparently
over a bathing suit. As pictured in the advertisement, the
width of the leg openings exceeds the width of the relaxed waist.
Boxer shorts were also the subject of a recent feature in
the Los Angeles Times.
Today's bold patterns, bright colors and handsome
haberdashery prints in combed cottons and silks remain
unseen, of course, under business suits and other-work
week garb, but lately have been turning into outerwear.
They peek out from under gym shorts or are worn over
tight spandex shorts a la Andre Agassi. And yes, women
wear them, too.
Id., Oct. 28, 1990, (Magazine) at 33-34.
Similarly, Lamneck, DNR, December 5, 1988, at 29, observes
that boxer shorts are worn by both sexes as more than underwear:
Young women wear them almost anywhere but
underwear, from classrooms to beaches, while young men
are exposing them more discreetly by letting the boxer
hang out under shorts. Also, many adult men are
wearing more sophisticated patterned boxers around the
house as loungewear and sleepwear.
We do not contend that boxer shorts should be classified on the
basis of fashion trends. However, we do note that fashions have
changed. In view of this Customs deems it appropriate to
consider to a garment's construction in order to determine
whether it has the characteristics of underwear or outerwear.
Having reviewed the construction of the garment in question,
we note that it differs significantly from that which is typical
of men's underwear, the extent that it would appear to be
designed for both men and women. Nevertheless, it has certain
features, such as the fly, which would suggest a man's garment.
Accordingly, applying Note 8, Chapter 62, HTSUSA, style 31252 is
identifiable neither as a men's garment nor as a women's garment.
Consequently, it is classifiable pursuant to Note 8, in the
headings covering women's or girls' garments.
Thus only two headings of the four cited above now remain in
play: heading 6204 (women's and girls' shorts); and heading 6208
(women's and girls' briefs, panties and similar articles). As
for the latter possibility, boxer shorts are not worn by women as
underwear and are therefore a class of merchandise separate and
distinct from the articles of heading 6208.
Heading 6204, HTSUSA, provides for, inter alia, women's and
girls' shorts. Boxers are worn by women and occasionally by men,
as outerwear, i.e., as shorts. Lamneck, supra, at 29. Sales to
women would appear to have helped spur the growth in the market
for boxer shorts.
And it's no longer exclusively a man's world...women,
teens, even little ones have jumped into the ring and
are loving the comfort and freedom of these elastic-
waist, loose-fitting-shorts. A knock-out worn alone
for jogging or lounging or as a snappy warm-up over
leotards....
Orvis, Spring 1991, at 42. Furthermore, some of the catalogues
attached to your March 6th submission portray garments similar to
style 31252 in a manner that would indicate that such garments
are shorts. Apart from the presence of pockets, there would
appear to be little difference between the garments portrayed and
the merchandise in question. See e.g., The La Costa Spa, Spring
1991, at 40-41(F); Boston Proper, Spring Selections, 1991, at
47(C); R.T.W., Ready to Wind-Down (Spiegel), Spring 1991, at 26-
27.
However, the fact that boxer shorts can be worn as outerwear
is not determinative of their classification. In this respect
Customs does not consider the issue to be one of principal use,
but rather one solely within the purview of GRI 1. Accordingly,
those garments that have the characteristics of men's underpants
will be classified as such. You have enumerated some of the
design features one would not expect to find on men's boxer short
underwear and indeed, have precluded garments from classification
as such in the past. Letter of March 6, 1991, at 41.
In classifying the merchandise at issue we have reviewed
the distinctions between underwear and outerwear, and believe
that the following features are indicative of non-underwear
garments.
1. Fabric weight greater than 4.2 ounces per square yard;
2. An enclosed or turned over waistband;
3. Lack of a fly or lining;
4. A single leg opening greater than the relaxed waist;
5. The presence of belt loops, inner or outer pockets or
pouches;
6. Multiple snaps at the fly opening (not including the
waistband, or button or zipper fly closures;
7. The side length of a size medium should not exceed 17
inches.
Although no one feature is determinative, the presence of more
than one of the above features gives rise to the presumption that
a boxer style garment is either outerwear or a unisex garment
rather than men's underwear. This presumption is rebuttable,
however, and the above criteria will be evaluated in conjunction
with advertising and marketing information. In addition, size
specifications will be considered and compared to those supplied
by domestic underwear manufacturers.
The fourth criteria above provides a test for distinguishing
men's garments from unisex garments and thus accomplishes nothing
more than what is required by Note 8, Chapter 62. The comparison
of the leg opening to the relaxed waist is merely an easy method
for the import specialist to effect this distinction.
You assert that Exhibits A-KK represent merchandise similar
to the Banana Republic garments. Although we do not have size
specifications for Exhibits A-KK, we have compared leg openings
to waist size. On this basis it appears likely that the majority
of the samples attached to your submission of March 6th would be
classifiable as men's underwear. Factors such as color, print,
single snap closures at the fly, and price are not taken into
account and have no impact on a garment's classification.
With regard to the specific merchandise imported by Banana
Republic, the information you have provided suggests that these
garments are unisex. You have not provided any advertising
materials to indicate that garments such as style 31252 are sold
as underwear. We are advised by our National Import Specialists
that the Banana Republic is recognized in the trade for selling
outerwear garments to men and women, and is not identified with
the men's underwear trade. Moreover, the garments sold by Banana
Republic are not directed toward one sex. There are no separate
underwear departments nor do the stores have separate men's and
women's departments.
HOLDING:
The style 31252 boxer short is classifiable in subheading
6204.62.4055, HTSUSA, under the provision for women's or girls'
suits, ensembles . . . and shorts; trousers, bib and brace
overalls, breeches and shorts; of cotton; other; other; other;
shorts; women's. They are dutiable at the rate of 17.7 percent
ad valorem and are subject to textile quota category 348.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service, which is available for
inspection at your local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
As a result of the foregoing, HRL 087939 dated November 28,
1990, is affirmed.
In order to insure uniformity in Customs classification of
this merchandise and eliminate uncertainty, we are revoking NYRLs
850329, 850330 and 851059 to reflect the above classification
effective with the date of this letter. However, if, after your
review, you disagree with the legal basis for our decision, we
invite you to submit any arguments you might have with respect to
this matter for our review. Any submission you wish to make
should be received within thirty days of the date of this letter.
This notice to you should be considered a revocation of NYRL
850329, NYRL 850330 and NYRL 851059 under 19 CFR 177.9(d)(1).
It is not to be applied retroactively to NYRLs 850329, 850330 and
851059 (19 CFR 177.9(d)(2)) and will not, therefore, affect past
transactions for the importation of your client's merchandise
under these rulings. However, for the purposes of future
transactions in merchandise of this type, NYRLs 850329, 850330
and 851059 will not be valid precedent. We recognize that
pending transactions may be adversely affected by this
modification, in that current contracts for importations arriving
at a port subsequent to this decision will be classified pursuant
to it. If such a situation arises, your client may, at its
discretion, notify this office and apply for relief from the
binding effects of this decision as may be warranted by the
circumstances. However, please be advised that in some instances
involving import restraints, such relief may require separate
approvals from other government agencies.
Sincerely,
John Durant, Director
Commercial Rulings Division